The date was May 17, 2007. The place was Centenary United Methodist Church in Winston-Salem. The occasion was the memorial service for Bob Elster, a beloved charter member of the NCADA. I was there along with Lynette Pitt and Richard Bennett to pay our respects. Former Chief Justice Jim Exum was seated to our left on the same pew. During the opening prayer, a cell phone sounded nearby. The ringtone was Stars and Stripes Forever. Heads turned and a person seated nearby began squirming as any of us might do in such an embarrassing situation. Following the service, that person told me, “I didn’t know whether to stand up and salute or crawl under the pew in front of me.” It would probably be unfair and unprofessional for me to mention the name of that person, but his initials were RVB and he lives and practices law in Winston Salem. I am sure that our friend, Bob Elster smiled when that occurred.
When I was asked by Lynette Pitt to write an article about professionalism and trial practice from the perspective of a small firm, small town lawyer, my initial inclination was to decline because I doubted it would be of interest to current members of the NCADA. However, I have decided to proceed with an article which I hope you will find helpful or at least interesting. A characteristic of senior lawyers is to share war stories and this short article will tell a few.
Following graduation from UNC Law School in 1972, I served as Research Assistant to the late R. A. Hedrick at the North Carolina Court of Appeals. I had no idea where I would go to practice law following that clerkship. A few months into that clerkship, then Governor Robert Scott appointed Julius A. Rousseau, Jr. of North Wilkesboro as a Superior Court Judge. Judge Hedrick encouraged me to interview with the firm. Neither my wife Ann nor I had ever been to Wilkes County and had no connections there. I went for an interview and was offered a position as an associate to begin in August 1973, when my clerkship ended.
WAR STORY NO. 1
AUGUST 1973 – BAPTISM BY FIRE
I was hired as an associate of the late Larry S. Moore, a wonderful trial lawyer and great southern gentleman. He was genteel, polite, and loved by everyone. On my first day in the office, he told me that there was a criminal term of Wilkes Superior Court, that we would simply go to the courthouse that day so that I could observe motion hearings and a trial and meet other lawyers and members of the Clerk of Court’s staff. He did not tell me that Judge Rousseau would be the presiding judge. Although I had heard many oral arguments in the NC Court of Appeals, I had never actually been in a trial courtroom.
After entering and being seated in the courtroom, Judge Rousseau, in a fairly gruff voice, directed Mr. Moore to approach the bench. Although I was seated 15 feet away, I heard him ask Mr. Moore, “Do you want John to get his feet wet?” Mr. Moore said “yes,” and I was appointed that day to represent an unfortunate individual charged with a second or third offense DWI. Judge Rousseau directed the Clerk to “put twelve jurors in the box.” Mr. Moore left the court room, and I was on my own to select the jury and try my first case. I had no advance warning that any of this was going to happen.
Somehow, I bumbled through, and late that afternoon, returned to the office in North Wilkesboro. I was upset with Mr. Moore for having abandoned me. It was late in the afternoon and Mr. Moore was seated at his desk with a glass of bourbon and a big smile on his face. He asked me about the trial, and it was all that I could do to contain myself and avoid saying something harsh. Perhaps it was nascent professionalism that kept me from doing so. But more likely, it was the need for a job and income. We discussed details of the case including the fact that the jury had deliberated for 45 minutes without reaching a verdict before court was recessed for the day. Mr. Moore said, “You must have done something right, you have confused the jury.”
The confusion did not last long because the next morning the jury returned and convicted the unfortunate client. As a footnote, my client had a homemade tattoo on his forearm that said, “Born to Lose.” Fast forward about 35 years later and the same gentleman came to see me about a disability case and told me that he had been working as a security guard.
WAR STORY NO. 2
THE COW CASE
Approximately three weeks later, Mr. Moore handed me a file and told me that the case was on the District Court Civil Jury calendar for trial the next day and that he wanted me to handle it. It was my first insurance defense case. I protested that I knew nothing about the case and could not possibly be prepared. He replied, “This is a cow case. No one has ever lost one of those.” He was wrong. I lost the case. For those of you who do not know, a “cow case” is a case in which a farmer is sued for negligently maintaining fences; a cow escapes from the pasture, wanders into the road and is struck by a passing vehicle, sometimes resulting in a lawsuit).
WAR STORY NO. 3
MOONSHINERS and CRIMINAL LAW
At that time, there were 13 ATF agents in Wilkes County because of the widespread moonshining in this area. In addition to our civil practice, we handled a wide variety of criminal cases ranging from many “liquor” cases, drug cases, assaults, and even murder. In a small-town general law practice, we did a bit of almost everything. After approximately 20 years, I discontinued any serious criminal court work to concentrate in the development and handling of a growing insurance defense practice. Eventually our firm grew to five lawyers, but I now practice alone.
During the following 48 years, hopefully my trial skills improved a bit. If so, it is because I have learned from each trial experience and have benefited greatly from my 40+ year association with the NCADA and DRI.
What have I learned about professionalism from a small-town practice? I have learned that it is important (1) to remain calm in the face of unexpected developments or adverse rulings; (2) to pace the cadence and tone of your speech; (3) to dress professionally and appropriately; (4) to be yourself; (5) to carefully draft and proofread documents; (6) to be polite and respectful of judges, opposing counsel, jurors, witnesses, and courtroom staff; (7) to be prepared; (8) to be honest (9) to be fair; (10) to be humble, not arrogant; (11) to avoid “sharp” practices and (12) to treat everyone with the same degree of respect and fairness with which you would want to be treated.
The NCADA is comprised of many great lawyers who embody those basic principles in both their lives and practices. Bob Elster would be proud of this association and its members. Undoubtedly, you, too, have helped keep that smile on his face.